Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Source Description
This file includes material on posthumous pardons by the President.
Scholar Source Context
Document identity
localId
4520449
label
Clemency - Kerner, Otto
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
4520449
sourceUrl
contentType
document
title
Clemency - Kerner, Otto
description
This file includes material on posthumous pardons by the President.
citationUrl
collections
Philip W. Buchen Files
Philip Buchen's General Subject Files
subjects
Presidential powers
Law and legislation
Pardon
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
4520449
coverageEndDate
logicalDate
1976-04-01
month
4
year
1976
coverageStartDate
logicalDate
1975-02-01
month
2
year
1975
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
d431e9ce1ee9f466
ocrText
The original documents are located in Box 4, folder "Clemency - Kerner, Otto" of the
Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 4 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
Otto
Kerner
FORD is GERALD LIBRARY
clemency
THE WHITE HOUSE
WASHINGTON
February 13, 1975
Dear Mr. Corush:
On behalf of the President, I would like to thank you
for your letter of January 24, 1975, concerning the
case of Otto Kerner.
Executive clemency is only considered upon formal
application by the person who has been convicted.
I have been informed by the Pardon Attorney at the
Department of Justice that no petition has been filed
by Otto Kerner. If he should file an application for
Executive clemency, you may be assured that it will
be given every appropriate consideration.
Your views are appreciated.
Sincerely,
Philip W. Buchen
Counsel to the President
Mr. Saul L. Corush
Illinois Beach Lodge
Zion, Illinois 60099
FORD is LIBRARY 938839
Clemency
THE WHITE HOUSE
WASHINGTON
February 13, 1975
Dear Mr. Herring:
On behalf of the President, I would like to thank you
for your letter of January 28, 1975, concerning the
case of Otto Kerner.
Executive clemency is only considered upon formal
application by the person who has been convicted.
I have been informed by the Pardon Attorney at the
Department of Justice that no petition has been filed
by Otto Kerner. If he should file an application for
Executive clemency, you may be assured that it will
be given every appropriate consideration.
Your views are appreciated.
Sincerely,
They W. W.Bulen Buchen
Counsel to the President
Mr. H. A. Herring
Vice President
FORD is LIBRARY 07V839
Capitol Machinery Company
Interstate 55 & Toronto Road
Post Office Box 2008
Springfield, Illinois 62705
Clementy
THE WHITE HOUSE
WASHINGTON
April 2, 1975
Dear Mr. Rentschler:
On behalf of the President, I would like to acknowl-
edge receipt of your letter of March 20 concerning
the case of Otto Kerner.
Executive clemency is only considered when a formal
application is filed by one who has been convicted of
a Federal offense. Presently, Otto Kerner, who was
recently released on parole has made no application.
If he should choose to file the appropriate papers
with the Department of Justice, his request would be
given careful consideration under existing guidelines.
Sincerely,
Thilj W. Buchen
Counsel to the President
#
Mr. William H. Rentschler
Box 910
Lake Forest, Illinois 60045
QERALO FORD LIBRARY
November 11, 1975
Justice
Dear Mr. Kupcinet:
Thank you for your letter of October 20, 1975, urging the
President to grant a parden to Mr. Otte Kerner.
Executive clemency, for one who has been convicted of a
Federal offense, is only considered upon formal application
by the person who has been convicted. When an application
is submitted, it is processed by the Pardon Attorney at the
Department of Justice in accordance with specific guidelines
which the President has approved. If letters are received
in support of, or in opposition to these applications, then
they are made a part of each file.
The Pardon Attorney has informed me that Mr. Kerner has
filed a petition for elemency; therefore, your letter of
support will be forwarded to the Department of Justice.
With best wishes,
Sincerely,
Philip W. Buchen
Counsel to the President
Mr. Irv Kupcinet
Chicage Sun-Times
401 North Wabash Avenue
Chicago, Illinois 60611
bee: Lawrence Traylor
PWB:BNR:HPG:kt
Central Files
LIBRARY HERALD ? FORD
the
May 24, 1976
To:
Dawn
From: Eva
This is the letter Mr. Buchen
mentioned to Ken on the phone.
FORD is LIBRARY GERALD
Re
STATE
U
PHONES: BISHOP 2-2682/STANLEY 8-26
G JUNE
CITY OF BERWYN, ILLINOIS
EMIL VACIN. MAYOR
DONALD E. PECHOUS
3244 S. MAPLE AI
ALDERMAN 1ST WARD
BERWYN, ILL. 604
749-3064
Philip
May 17, 1976
Honorable Gerald R. Ford
The President of the United States
The White House
clipping
Washington, D. C.
Dear Mr. President:
As a recent member of Chuck Percy's Senatorial Advisory Committee of the
6th Congressional District of Illinois, I had occasion in April to offer
Chuck help in polling one hundred Berwyn residents. The purpose of the
poll was to determine whether a sampling of Berwynites favored a Presi-
dential Pardon for former Governor Otto Kerner.
It is important to note that this informal poll was taken and concluded
at a time when Mr. Kerner was alive. The results were better than three
to two in favor of a pardon.
Last week, public visitation services for former Governor Kerner were held
in the City of Berwyn. Thousands attended.
The attached clipping reflects the feeling of many residents. I trust this
information might help you in deciding this difficult question.
Respectfully,
Donald E. Pechous
Donald E. Pechous
cc: Senator Charles H. Percy
FORD is LIBRARY GERALD
1
P. S. I know you by reputation to be a conscientious man who has done a
fine job. You will again be President in November. Regardless of
your decision in this matter, you will have my support throughout
the campaign.
JL 1 (Otto Kerner)
Rus capy
June 2, 1976
If
Dear Mr. Pechous:
This is in response to your recent letter to the President
concerning the grant of a posthumous pardon to the former
Governor of Illinois, Otto Kerner.
As you may know, just prior to the death of Mr. Keraer, the
Department of Justice granted him a waiver of the rule
requiring a person convicted of income tax evasion to wait
five years from the date of his release from confinement
before applying for pardon. Thus, at the time of the former
Governor's death, the Department had proceeded to the
merits of his application.
Mr. Kerner's long carrer of dedicated and distinguished
public service, as a United States Attorney, State judge,
Governor of Illinois and finally as a Federal judge, is a
matter of public record. Notwithstanding the belief of many
that the grant of a pardon to Mr. Kerner during his lifetime
could have been justified as a recognition of the importance
and significance of his many contri butions to his state and the
Nation, we have been advised by the Department of Justice
of their determination that there is no legal basis for the
grant of a posthumous pardon.
In a trilogy of cases, the Supreme Court established the rule
that a pardon is a "deed" to the validity of which delivery is
essential and is not complete without acceptance [United States
V. Wilson, 32 U.S. 150 (1838); Burdick v. United States, 236
U.S. 79 (1915): and Biddle v. Perovich, 274 U.S. 480 (1972)].
The requirement of acceptance of a pardon has also been
recognised in a series of rulings by the Attorney General.
[See 11 Op. A.C. 227 (1865) and 41 Op. A.G. 251 (1955)].
Thus, as a matter of law, the President would not appear to
possess the power to issue a posthumous parden.
FORD i LIBRARY GERALD
- 2 -
The President appreciates your interest in this subject and
trusts that the foregoing will sufficiently explain why it is
not possible to take any further steps in this matter.
Sincerely,
Kenneth A. Lasarus
Associate Counsel
to the President
Mr. Donald E. Pechous
3244 S. Maple Avenue
Berwyn, Illinois 60402
KAL_dim
FORD is LIBRARY GERALD
PWB - Chay
JL 1 (Otto Kerner)
June 2, 1976
Dear Mr. Randolph:
This is in response to your recent letter to the President
concerning the grant of a posthumous pardon to the former
Governor of Illinois, Otto Kerner.
As you may know, just prior to the death of Mr. Kerner, the
Department of Justice granted him a waiver of the rule
requiring a person convicted of income tax evasion to wait
five years from the date of his release from confinement
before applying for pardon. Thus, at the time of the former
Governor's death, the Department had proceeded to the
merits of his application.
Mr. Kerner's long career of dedicated and distinguished public
service, as a United States Attorney, State judge, Governor
of Illinois and finally as a Federal judge, is a matter of public
record. Notwithstanding the belief of many that the grant of a
pardon to Mr. Kerner during his lifetime could have been
justified as a recognition of the importance and significance of
his many contributions to his state and the Nation, we have been
advised by the Department of Justice of their determination
that there is no legal basis for the grant of a posthumous pardon.
In a trilogy of cases, the Supreme Court established the rule that
a parden is a "deed" to the validity of which delivery is essential
and is not complete without acceptance [United States V. Wilson,
32 U.S. 150 (1838); Burdick v. United States, 236 U.S. 79 (1915);
and Biddle V. Perovich, 274 U.S. 480 (19720]. The requirement
of acceptance of a pardon has also been recognized in a series of
rulings by the Attorney General. [See 11 Op. A.G. 227 (1865) and
41 Op. A.G. 251 (1955)]. Thus, as a matter of law, the President
would not appear to possess the power to issue a posthumous pardon.
FORD is LIBRARY GERALD
- 2 -
The President appreciates your interest in this subject and
trusts that the foregoing will sufficiently explain why it is
not possible to take any further steps in this matter.
Sincerely,
Kenneth A. Lazarus
Associate Counsel
to the President
The Honorable Paul J. Randolph
State Representative
850 N. Dewitt Place
Chicago, Illinois 60611
KAL:dim
FORD is LIBRARY GENALD
file
THE WHITE HOUSE
WASHINGTON
may Mems the 18 Kin part
May 22, 1976
ADMINISTRATIVELY CONFIDENTIAL
MEMORANDUM FOR:
PHILIP BUCHEN
FROM:
JAMES E. CONNOR gee
SUBJECT:
Posthumous Pardons
The President reviewed your memorandum of May 18 on the
above subject and has approved your recommendation that
he decline to have the Department of Justice consider
further the request for pardon made by Otto Kerner prior
to his death.
Please follow-up with the appropriate action.
cc: Dick Cheney
FORD is LIBRARY 01RALD
Pardens
THE WHITE HOUSE
WASHINGTON
May 18, 1976
MEMORANDUM FOR:
THE PRESIDENT
FROM:
PHILIP BUCHEN
T.
SUBJECT:
Posthumous Pardons
BACKGROUND
At the time of the terminal illness of Otto Kerner
of Illinois, he, his family and friends sought to
make it possible for you to consider granting him
a pardon from the Federal tax fraud crime of which
he had earlier been convicted.
Under current rules governing petitions for pardons,
it is provided that no petition for pardon in
cases involving violation of income tax laws should
be filed until the expiration of five years from
the release of the petitioner from imprisonment.
Under the circumstances of the Kerner case, the
petitioner sought from the Deputy Attorney General
a waiver of this waiting period based on the
medical evidence that the petitioner would not
survive the five year period and would probably
die within a matter of months. This waiver was
granted and the Department of Justice started to
process the petition for a pardon, without regard
to the waiting period, so as to determine whether
or not the petition on its merit warranted favor-
able action by you. This process was just barely
begun when Otto Kerner died.
Now, the surviving family of Otto Kerner and his
friends are urging that the Department of Justice
proceed to treat the initially filed request for
a pardon as one which could lead to a posthumous
pardon by you. Under these circumstances, I asked
the Department of Justice to advise me on whether
a posthumous pardon could be validly granted by
you.
FORD is LIBRARY GERALD
2 -
The Department of Justice files show that the same
issue was raised in 1956 by the then Attorney General.
The opinion at that time by the Office of Legal
Counsel was that the President does not possess the
power to issue a posthumous pardon. (A copy of this
opinion is attached at Tab A.)
I am further advised by the Department of Justice that
there has been no instance either before of after this
opinion which indicates that the President of the U. S.
has issued a posthumous pardon, except for one instance
where the pardon was issued to a grantee under the
mistaken impression that he was still alive when in
fact he had died just before the date of the pardon.
DISCUSSION
If you were to take the innovative step of issuing a
pardon for a deceased person merely for its symbolic
effect, I do not see that anyone would have standing
to challenge this action on your part. However, such
a step on your part would undoubtedly provoke consider-
able public discussion and would undoubtedly lead to
other requests from families of persons formerly
convicted of Federal crimes who have since died. This
possibility would make it almost mandatory that some
criteria be developed for judging when to grant and
when to decline requests for pardons in favor of
deceased persons, and the Department of Justice would
have to be instructed to set up a machinery for
handling such requests.
RECOMMENDATION
I recommend that you decline to have the Department of
Justice consider further the request for pardon made
by Otto Kerner prior to his death.
Concurring in this recommendation are:
Opposing are:
APPROVE RECOMMENDATION
DISAPPROVE RECOMMENDATION
FGRD is LIBRARY GERALD
Attachments
copy
MEMORANDUM FOR THE ATTORNEY GENERAL
Re: The President's power to
issue a posthumous pardon
This is in response to your request for our advice on the
above question. The Constitution, Article II, Section 2, vests
in the President "Power to grant Reprieves and Pardons for
Offenses against the United States. The authorities dealing with
the question whether this power extends to the issuance of post-
humous pardons are few and not of recent date.
At its December 1871 term, the Court of Claims held in
Meldrim v. United States, 7 Ct. C1. 595, that where an individual
guilty of giving aid or comfort to the rebellion of the Southern
States died without pardon and before the President's General
Amnesty Proclamation of December 25, 1868 (15 Stat. 711), the
proclamation did not obliterate the offense, and his administratrix
therefore could not maintain an action for the proceeds of his
captured property in the Treasury. It further appeared that the
President had issued a special pardon but the intestate died shortly
after its issuance and never accepted it. In a subsequent case,
Sierra v. United States, 9 Ct. C1. 224 (Dec. T., 1873), the court
held on the authority of its decision in the Mcldrim case that the
Amnesty Proclamation of 1868 was "inoperative as to one who had
died before its issuc. " See also Scott's Case, 8 Ct. Cl. 457
(Dec. T., 1873).
At an carlier date, in 1864, the President had before him
the question whether he could remit a fine after the death of a man
convicted of aiding and rescuing a deserter, the court having im-
posed a sentence of a $500 finc. Attorney General Bates advised
the President that he had this power. 11 Ops. A.G. 35. He said
that "it might be doubtful on technical principles whether the
President could grant a deed of pardon to a man after his death,
since as Chief Justice Marshall says, in United States VG. Wilson,
(7 Pet., 161,) 'a pardon is a deed, to the validity of which delivery
is essential, and delivery is not complete without acceptance', and,
of course, there can be no delivery to and acceptance by a dead
man" (p. 36). However, he continued (pp. 36-37):
FORD & 076870 LIBRARY
- 2 -
***2 distinction exists between the act of a par-
don by which = man is relieved of corporal punish-
ment for guilt and the act for remission of a fine
which operates on his estate only. The technical
reason which may (I do not say will) prevent a
pardon from operating in favor of a dead man,
does not apply to the remission of a fine, for
that may be accepted by the heirs to the estate
whose interests are affected by it. The distinc-
tion between pardon of corporal punishment and
remission of a pecuniary fine is recognized by
the act of February 20, 1863, chap. 46, which
gives the President the full discretionary power
to remit the one without disturbing the other. is
In my opinion you have the power to
remit the fine imposed on the late John Caldwell,
notwithstanding his death, by an instrument
reciting the circumstances of the case. xise
The deed concept of a pardon as expressed by Chief Justice
Marchall was approved in Burdick v. United States, 236 U.S. 79,
and on that basis it was held that the President "cannot force a par-
don upon a man. 11 However, in Biddle V. Perovich, 274 U.S. 480,
the Supreme Court held that the reasoning of the Burdick case was
not to be extended to the commutation of a death sentence to lif e
imprisonment. Without overruling Burdick, the Court did say
(p. 486) that "A pardon in our days is not a private act of grace
from an individual happening to possess power. " However, it would
seem that as the law now stands a pardon, except in the situation
involved in Perovich, must be considered as in the nature of a deed
50 that to be effective it has to be accepted. Moreover, the law
is well-settled that in the absence of statute a deed to a deceased
party is ineffectual to pass title to real property. Davenport v.
Lamb, 13 Wall. 418; Note, 148 A.L.R. 252.
*See, 18 U.S. C. 3570, providing that when an individual is sentenced
to two kinds of punishment "the one Pecuniary and the other corporal,
the President's remission in whole or in part of either kind shall not
impair the legal validity of the other kind or of any portion of either
kind, not remitted.'
This opinion has never been subsequently cited.
:
FORD
GERALD
LIBRARY
- 3 -
The Pardon Attorney advises us that with the exception of
the fine case above (11 Ops. A.G. 35), he has found no record of
the President issuing a posthumous pardon. He further states that
it has always been the view of his office that it would not be practical
to Issue pardens to deceased persons although personally he "would
not object in hardship cases such as canes of widows of Government
employees who are deprived of annuities to follow the precedent
catablished in the Caldwell case /11 Ops. A.G. 35, supra/ ***
where an estate is involved rather than a person. I would counsel
against, however, the practice of recommending pardons for
deceased persons for the mere purpose of clearing the name, etc.
There is no doubt that many widows and survivors would want that
done. "
Unless the deed theory of a pardon in to be rejected, which
I do not believe is warranted under existing decisions, it is my
opinion that the President docs not possess the power to issue a
posthumous pardon; he docs have the power, as established by the
opinion of Attorney General Dates, to remit a fine posthumously.
Unless there is occasion to do 60, I feel that we should leave open
the question whether Attorney General Bates' reasoning as to
remission of a fine may be extended to affording relief, by way of
a posthumous pardon, with respect to a Government annuity, as
suggested by the Pardon Attorney.
/s/ J. Lee Rankin
J. Lee Rankin
Assistant Attorney General
Office of Legal Counsel
FORD is LIBRARY 074870
to
THE DEPUTY ATTORNEY GENERAL
capy
WASHINGTON, D.C. 20530
Ren
PRO
DOMINAS
JUSTITIA
*
May 12, 1976
MEMORANDUM FOR:
PHILIP BUCHEN, ESQ.
COUNSEL TO THE PRESIDENT
FROM:
HAROLD R. TYLER, JR.
DEPUTY ATTORNEY GENERAL
жим
RE:
POSTHUMOUS PARDONS
Please be advised that my investigations in
regard to posthumous pardons reveals the following:
1. In August, 1956, the then Assistant
Attorney General, Office of Legal Counsel,
Department of Justice, rendered an opinion
to the Attorney General that the President,
as a matter of law, does not possess the
power to issue a posthumous pardon.
2. Until August, 1956, there were no records
indicating that a President had issued a post-
humous pardon.
3. Since 1956, there has been one case where
a pardon was issued by the President, but in
the curious situation of the grantee of the
pardon being deceased without knowledge thereof
by the President or the Justice Department. In
other words, though the pardon was issued, it
was issued on the mistaken understanding that
the grantee thereof was alive.
4. It is interesting to note that the present
rules governing petitions for Executive clemency
FORD is 07V830 LIBRARY
Page 2
May 12, 1976
require that the pardon application be filed
by the convicted person and not by any other
person on his or her behalf. See 28 CFR 1.1
and 1.2. Moreover, the traditional practice
in the Department has been that when an individual
files a pardon application but dies prior to final
action being taken on his petition, the file is
closed without taking any further action.
5. I should note that I have not asked the
Office of Legal Counsel to bring up to date
its memorandum opinion of 1956. This could
be done, of course, but all indications are
that American case law on the point has been
virtually non-existent since the summer of 1956.
VORD
St
copy
MEMORANDUM FOR THE ATTORNEY GENERAL
Re: The President's power to
issue a posthumous pardon
This is in response to your request for our advice on the
above question. The Constitution, Article II, Section 2, vests
in the President "Power to grant Reprieves and Pardons for
Offenses against the United States." The authorities dealing with
the question whether this power extends to the issuance of post-
humous pardons are few and not of recent date.
At its December 1871 term, the Court of Claims held in
Meldrim V. United States, 7 Ct. C1. 595, that where an individual
guilty of giving aid or comfort to the rebellion of the Southern
States died without pardon and before the President's General
Amnesty Proclamation of December 25, 1868 (15 Stat. 711), the
proclamation did not obliterate the offense, and his administratrix
therefore could not maintain an action for the proceeds of his
captured property in the Treasury. It further appeared that the
President had issued a special pardon but the intestate died shortly
after its issuance and never accepted it. In a subsequent case,
Sierra v. United States, 9 Ct. C1. 224 (Dec. T., 1873), the court
held on the authority of its decision in the Mcldrim case that the
Amnesty Proclamation of 1868 was "inoperative as to one who had
died before its issue. See also Scott's Case, 8 Ct. Cl. 457
(Dec. T., 1873).
At an earlier date, in 1864, the President had before him
the question whether he could remit a fine after the death of a man
convicted of aiding and rescuing a deserter, the court having im-
posed a sentence of a $500 fine. Attorney General Bates advised
the President that he had this power. 11 Ops. A.G. 35. He said
that "it might be doubtful on technical principles whether the
President could grant a deed of pardon to a man after his death,
since as Chief Justice Marshall says, in United States VG. Wilson,
(7 Pet., 161,) 'a pardon is a deed, to the validity of which delivery
is essential, and delivery is not complete without acceptance', and,
of course, there can be no delivery to and acceptance by a dead
man" (p. 36). However, he continued (pp. 36-37):
FORD i LIBRARY GERALD
- 2 -
*** a distinction exists between the act of a par-
don by which a man is relieved of corporal punish-
ment for guilt and the act for remission of a fine
which operates on his estate only. The technical
reason which may (I do not say will) prevent a
pardon from operating in favor of a dead man,
does not apply to the remission of a fine, for
that may be accepted by the heirs to the estate
whose interests are affected by it. The distinc-
tion between pardon of corporal punishment and
remission of a pecuniary finc is recognized by
the act of February 20, 1863, chap. 46, which
gives the President the full discretionary power
to remit the one without disturbing the other. x
In my opinion you have the power to
remit the fine imposed on the late John Caldwell,
notwithstanding his death, by an instrument
reciting the circumstances of the case. xxx
The deed concept of a pardon as expressed by Chief Justice
Marshall was approved in Burdick v. United States, 236 U.S. 79,
and on that basis it was held that the President "cannot force a par-
don upon a man. " However, in Biddle v. Perovich, 274 U.S. 480,
the Supreme Court held that the reasoning of the Burdick case was
not to be extended to the commutation of a death sentence to lif e
imprisonment. Without overruling Burdick, the Court did say
(p. 486) that "A pardon in our days is nct a private act of grace
from an individual happening to possess power. However, it would
seem that as the law now stands a pardon, except in the situation
involved in Perovich, must be considered as in the nature of a deed
so that to be effective it has to be accepted. Moreover, the law
is well-settled that in the absence of statute a deed to a deceased
party is ineffectual to pass title to real property. Davenport v.
Lamb, 13 Wall. 418; Note, 148 A.L.R. 252.
"See, 18 U.S.C. 3570, providing that when an individual is sentenced
to two kinds of punishment "the one Pecuniary and the other corporal,
the President's remission in whole or in part of either kind shall not
impair the legal validity of the other kind or of any portion of either
kind, not remitted. "
This opinion has never been subsequently cited.
FORD & QERALD LIBRARY
- 3 -
The Pardon Attorney advises us that with the exception of
the fine case above (11 Ops. A.G. 35), he has found no record of
the President issuing a posthumous pardon. He further states that
it has always been the view of his office that it would not be practical
to Issue pardens to deceased persons although personally he "would
not object in hardship cases such as canes of widows of Government
employees who are deprived of annuities to follow the precedent
established in the Caldwell case /11 Ops. A.G. 35, supra/ ***
where an estate is involved rather than a person. I would counsel
against, however, the practice of recommending pardons for
deceased persons for the mere purpose of clearing the name, etc.
There is no doubt that many widows and survivors would want that
done. "
Unless the deed theory of a pardon in to be rejected, which
I do not believe is warranted under existing decisions, it is my
opinion that the President docs not possess the power to issue a
posthumous pardon; he docs have the power, as established by the
opinion of Attorney General Bates, to remit a fine posthumously.
Unless there is occasion to do so, I feel that we should leave open
the question whether Attorney General Bates' reasoning as to
remission of a fine may be extended to affording relief, by way of
a posthumous pardon, with respect to a Government annuity, as
suggested by the Pardon Attorney.
/s/ J. Lee Rankin
J. Lee Rankin
Assistant Attorney General
Office of Legal Counsel
FORD i GERALD LIBRARY
RULES GOVERNING PETITIONS FOR EXECUTIVE CLEMENCY
Department of Justice
WASHINGTON, D.C.
§ 1.1 Submission of petition; form to be used.-Persons
§ 1.6 Disclosure of files.-Reports, memoranda, and com-
seeking Executive clemency, by pardon or by commutation
munications submitted or furnished in connection with the
of sentence, including remission of fine, shall execute formal
consideration of a petition for Executive clemency shall be
petitions therefor which shall be addressed to the President
available only to officials concerned with the consideration
of the United States and which, except those relating to
of the petition; provided that they may be open to inspection
military or naval offenses, shall be submitted to the Attor-
by the petitioner or by his attorney or other representative
ney General of the United States. Appropriate forms for
if, in the opinion of the Attorney General or his representa-
such petitions will be furnished by the Department of Jus-
tive, the disclosure sought is required by the ends of justice.
tice, Washington, D.C., upon application therefor. Forms
for petition for commutation of sentence may also be ob-
§ 1.7 Consideration of petitions by the Attorney General;
tained from the warden of Federal penal institutions. Forms
recommendations to the President.-(u) Upon receipt of a
furnished by the Department of Justice for use in pardon
petition for Executive clemency, the Attorney General shall
cases may be used by petitioners in cases relating to the
consider that petition and cause such investigation to be
forfeiture of veterans' benefits, with appropriate modifica-
made with respect thereto as he may deem appropriate and
tions. A petitioner applying for Executive clemency with
necessary, using the services of, or obtaining reports from
respect to military or naval offenses should submit his peti-
appropriate officials and agencies of the Government, includ-
tion directly to the Secretary of the military department
ing the Federal Bureau of Investigation, to the extent
which had original jurisdiction over the court-martial trial
deemed necessary or desirable.
and conviction of the petitioner. In such instance, a form
furnished by the Department of Justice may be used but
(b) The Attorney General shall review each petition and
should be modified to meet the needs of the particular case.
all pertinent information developed by his investigation
§ 1.2 Contents of petition.-Each petition for Executive
thereof and shall advise the President whether, in his judg-
clemency should include: the name and age of the petitioner;
ment, the request for clemency is of sufficient merit to war-
the court, district, and State in which he was convicted;
rant favorable action by the President.
the date of sentence; the crime of which he was convicted;
the sentence imposed; the date he commenced service of sen-
(c) If he determines that the request merits favorable
tence; and the place of confinement. In the case of a peti-
action by the President, he shall submit the petition to the
tion for pardon, the petitioner should also state his age
President together with a warrant prepared for the signa-
at the time of commission of the offense; the date of release
ture of the President granting the clemency recommended
from confinement; whether he is a citizen of the United
by the Attorney General.
States or an alien; his marital status; his prior and sub-
sequent criminal record, if any; his employment since con-
(d) If he determines that the petition and information
viction; and his place of residence. A petition may be
developed by his investigation do not, in his judgment, merit
accompanied by endorsements. It is desirable that all
favorable action by the President he shall provide the Presi-
applications for pardons be accompanied by at least three
dent with a concise statement enumerating the essential facts
character affidavits.
concerning the petitioner, the petition, and his reasons for
recommending denial of clemency.
§ 1.3 Eligibility for filing petition for pardon.-No peti-
tion for pardon should be filed until the expiration of a
§ 1.8 Notification of grant of clemency.-When a petition
waiting period of at least 3 years subsequent to the date
for pardon is granted, the petitioner or his attorney shall be
of the release of the petitioner from confinement, or, in case
notified of such action, and the warrant of pardon shall be
no prison sentence was imposed, until the expiration of a
mailed to the petitioner. When commutation of sentence
period of at least 3 years subsequent to the date of the
is granted, the petitioner shall be notified of such action, and
conviction of the petitioner. In some cases, such as those
the warrant of commutation shall be sent to the petitioner
involving violation of narcotic laws, income tax laws, per-
through the officer in charge of his place of confinement, or
jury, violation of public trust involving personal dishonesty,
directly to the petitioner if he is on parole.
or other crimes of a serious nature a waiting period of 5
years is usually required. In cases of aliens seeking a
§ 1.9 Notification of denial of clemency.-(a) Whenever
pardon to avert deportation, the waiting period may be
the President notifies the Attorney General that he is deny-
waived. Generally, no petition should be submitted by a
ing a request for clemency, the Attorney General, or at his
person who is on probation or parole.
direction the Pardon Attorney, shall-so advise the petitioner
§ 1.4 Eligibility for filing petition for commutation of
and close the case.
sentence.-A petition for commutation of sentence, including
remission of fine, should be filed only if no other form of
(b) Whenever the Attorney General recommends that the
relief is available, such as from the court or the United
President deny a request for clemency and the President
States Board of Parole, or if unusual circumstances exist,
does not disapprove or take other action with respect to that
such as critical illness, severity of sentence, ineligibility for
adverse recommendation within 30 days after the date of its
parole, or meritorious service rendered by the petitioner.
submission to him, it shall be presumed that the President
concurs in that adverse recommendation of the Attorney
§ 1.5 Offenses against the laws of possessions or terri-
General, and the Attorney General, or at his direction the
tories of the United States.-Petitions for Executive clem-
Pardon Attorney, shall so advise the petitioner and close
ency shall relate only to violations of laws of the United
the case.
States. Petitions relating to violations of laws of the pos-
sessions of the United States or territories subject to the
These regulations shall become effective on the thirty-first
jurisdiction thereof should be submitted to the appropriate
day following the date of their publication in the FEDERAL
official or agency of the possession or territory concerned.
REGISTER.
ROBERT F. KENNEDY,
Attorney General.
Date: October 18, 1962.
Approved: JOHN F. KENNEDY.
Date: October 30, 1962.
Published in the FEDERAL REGISTER of the National Archives of the United States, November 10, 1962, Volume 27, Number
220, Part I, at pages 11002 and 11003.
DOJ
Capy- Buchen
THE WHITE HOUSE
WASHINGTON
Aorbeling
Date 4/28/76
TO:
BILL NICHOLSON
FROM:
KEN LAZARUS
ACTION:
Approval/Signature
Comments/Recommendations
Prepare Response
Please Handle
X
For Your Information
File
REMARKS:
Attached is a copy of our most recent
correspondence on the Kerner pardon.
DR. 0 R. FORD
(if
THE WHITE HOUSE
WASHINGTON
April 23, 1976
MEMORANDUM FOR:
PHILIP BUCHEN
FROM:
WILLIAM NICHOLSON WUN
SUBJECT:
Former Governor Otto Kerner
This morning Mr. Wally Johnson of Chicago called concerning
a Presidential pardon for former Governor Otto Kerner.
Mr. Johnson advises that the Governor's physical condition is
bad and that he will not be living much longer, When the Governor
dies he will not have full Masonic honors at his burial unless he is
pardoned prior to death. Mr. Johnson knew the President was a
33° Mason and would understand the importance of these honors.
FORD :- LIBRARY 038830
THE WHITE HOUSE
WASHINGTON
April 28, 1976
Dear Mr. Patton:
This is in reply to your letter to the President of April 13,
1976, expressing the view that consideration of a pardon
for former Governor Otto Kerner is justified prior to the
expiration of the normal five-year waiting period.
The question of a waiver of the waiting period is being
reconsidered by the Deputy Attorney General on the basis
of recent medical information concerning Mr. Kerner's
condition. I shall contact you again when a decision has
been made concerning the waiver.
Your views on this matter are appreciated.
Sincerely,
ps/
Kenneth A. Lazarus
Associate Counsel
to the President
Mr. Thomas E. Patton
Seymour & Patton
1225 Connecticut Avenue, N. W.
Washington, D. C. 20036
bcc: Phil Buchen - FYI
Bill Nicholson - - FYI
Dick Parsons - FYI
FORDS is BERALD LIBRARY
Bank ere Kan
SEYMOUR & PATTON
Attorneys at Law
1225 Connecticut Avenue
Washington, D.C. 20036
(202) 452-1111
April 13, 1976
Determined to be an
Administrative Marking
The Honorable Gerald R. Ford
By
NARA, Date 8/06/15
President of the United States
The White House
Washington, D.C.
Re: Otto Kerner, Jr.
PRIVATE AND CONF IDENTIAL
Dear Mr. President:
Otto Kerner is dying. The enclosed medical report from
four eminent doctors leaves no room for doubt that Mr. Kerner
is suffering from cancer that cannot be reversed. Until
this time I, as his attorney, have sought a presidential
pardon solely through normal channels by applying to the
Pardon Attorney at the Justice Department. The Justice
Department however, has held that they will not waive the
normal five year waiting period following a criminal convic-
tion. That decision is to my mind an outlandish refusal to
exercise compassion toward a man who does not have anywhere
near a five year life expectancy. Because of our frustra-
tions in seeking a pardon through normal channels, and
because we have met with failure through normal channels, it
is my duty as Mr. Kerner's attorney to take off the gloves
and appeal directly to you under your absolute constitu-
tional power to grant a pardon. All of the arguments in
favor of Mr. Kerner's pardon have already been set forth in
our pardon petition, a copy of which was sent to the White
House. I wish here only to summarize why you must, in the
name of all that is compassionate and decent, pardon Otto
Kerner.
Otto Kerner devoted forty years of his life to useful
public service. As an Army Major General, as a United
States Attorney, as two-term Governor of Illinois, as a
Federal Appellate Judge and as the chairman of an important
Presidential commission, Mr. Kerner spent his entire life in
public service. No one who has ever studied his record has
ever questioned the great value of his services to the
public. The only blemish on his record was the purchase
FORD & GERALD LIBRARY
The Honorable Gerald R. Ford
April 13, 1976
Page two
of racetrack stock which resulted in his indictment and con-
viction. (All other charges in the indictment followed that
purchase.) When his 40 years of dedicated and useful public
service is compared against this one blemish, surely Mr. Kerner
is entitled to the compassionate gratitude of his country in
his twilight days. Mr. Kerner's public career has always
been marked by a compassionate sense of duty to the public.
At this hour in his life he is entitled to receive the same
compassion which he himself always demonstrated in his
lifetime.
Because we have met with failure in the Justice Department,
and because we cannot expect success without your personal
consideration, this last appear must necessarily be made
directly to you, particularly because Mr. Kerner's days are
measured in months and not years.
Ultimately this appeal cannot rest upon logic or reason;
for ultimately your decision in Mr. Kerner's case must be
based solely on considerations of humanity and compassion.
We do not seek exoneration of his acts, but only a compas-
sionate gesture, which transcends considerations of guilt or
innocence. The report of his physicians leaves no doubt
that Mr. Kerner's misery is due in large part to his con-
viction and that a pardon is the only way to relieve his
mental distress which worsens his physical condition. The
doctors' report itself contains the most eloquent statement
of the need for a pardon:
"Such a humanitarian expression of kindness and gener-
osity would offer Mr. Kerner the mental and spiritual
peace he so desperately seeks and needs to face the end
of his life with the same dignity with which he lived."
Mr. President, you have exhibited in many ways your
understanding of the need to temper justice with mercy. A
pardon for Otto Kerner, Jr. in these circumstances would be
a truly humanitarian act.
Sincerely,
Thomas E. Patton
TEP/mb
Attorney for BERALE Otto Kerner, Jr.
Enclosure
sent to
Ken Layarus
1/29/76
THE WHITE HOUSE
WASHINGTON
January 29, 1976
Eva,
Thomas Patton, of Seymour & Patton,
attorneys for Otto Kerner, former
Governor of Illinois, telephoned late
yesterday afternoon requesting a visit
with someone in the White House regarding
a pardon for Kerner.
Patton had written on October 14, 1975;
we referred his letter to Justice; and
later we responded to Patton (copies of
correspondence enclosed).
The Attorney General disqualified himself
for the hearing. Judge Tyler presided at
the hearing and ruled negatively with
respect to the petition for pardon.
Patton feels he did not get a fair hearing
and wants to talk to someone in the White
House about it. Because his client is
advancing in age and in very poor health,
he feels he should make a "last-ditch"
appeal to the White House.
Patton says many people have written in
support of the pardon. If you want to see
those letters, they undoubtedly are in
Central Files.
Mary Donahue
Thomas Patton -- 452-1711
GERALD 18. FORD VIBRARY
November 18, 1975
Dear Mr. Patton:
President Ford has asked ae to acknowledge your letter of
October 14, 1975, concerning the petition for pardon of
Otto Kerner, Jr., and enclosing a memorandum in support of
the petition.
I am advised by the Pardon Attorney that Mr. Kerner's request
for a waiver of the usual five-year waiting period subsequent
to the date of release has been referred to the Attorney
General for decision. I have also been advised that the
Attorney General has recused himself in this matter and has
requested the Deputy Attorney General to decide the request.
You may be sure that Mr. Kerner's request will be carefully
considered.
Sincerely,
Richard D. Parsons
Associate Director and Counsel
Domestic Council
Mr, Thomas 3. Patton
Seymour 6 Patton
1225 Connecticut Avenue, NW.
Washington, D. C. 20036
RDP:med
FORD i LIBRARY 07VN39
(you
SEYMOUR & PATTON
Attorneys, at Law
1225 Connecticut Avenue
Washington, D.C. 20036
(202) 452-1111 (202) 452-1711
October 14, 1975
The Honorable Gerald R. Ford
President of the United States
The White House
Washington, D. C.
Re: Petition of Otto Kerner, Jr., for
Executive Clemency
Dear Mr. President:
This is to advise you that a petition has been filed
this day with the Pardon Attorney of the Department of
Justice requesting that you exercise your constitutional
power to grant a Presidential pardon to Otto Kerner, Jr.,
former Governor of Illinois. I am enclosing a memorandum
in support of the petition which I respectfully request be
reviewed by the White House. In light of the highly sig-
nificant nature of this case and of the extraordinary merits
in support of the application, you should be directly
advised of the pendency of this petition. Otto Kerner, Jr.,
devoted 40 years of his life to useful public service and
a Presidential pardon would be a very small gesture of
appreciation to Mr. Kerner for his dedicated service at
a time when he is of an advanced age and with serious
health problems.
As I have advised the Pardon Attorney, there are
extraordinarily compelling reasons to grant this petition,
and I trust that every fair consideration will be given
to the petition on its merits.
Respectfully,
Chomatt
Thomas E. Patton
Attorney for Petitioner
Enclosures
CC: Lawrence Taylor, Esq.
Otto Kerner, Jr.
FORD is LIBRARY
TEP/ssg
Parden
THE WHITE HOUSE
WASHINGTON
April 23, 1976
MEMORANDUM FOR: PHILIP BUCHEN
FROM:
WILLIAM NICHOLSON wun
SUBJECT:
Former Governor Otto Kerner
This morning Mr. Wally Johnson of Chicago called concerning
a Presidential pardon for former Governor Otto Kerner.
Mr. Johnson advises that the Governor's physical condition is
bad and that he will not be living much longer. When the Governor
dies he will not have full Masonic honors at his burial unless he is
pardoned prior to death. Mr. Johnson knew the President was a
33° Mason and would understand the importance of these honors.
FORD is GERALD LIBRARY
Partos
April 23, 1976
Dear Senator Percy:
This is in further reply to your letter to the President of
March 29, 1976, expressing the view that consideration of
a pardon for former Governor Otto Kerner is justified
prior to the expiration of the normal five-year waiting period.
The question of a waiver of the waiting period is being
reconsidered by the Deputy Attorney General on the basis
of recent medical information concerning Mr. Kerner's
condition. I shall contact you again when n decision has
been made concerning the waiver.
Your views on this matter are appreciated.
Sincerely,
/s/
Kenneth A. Lazarus
Associate Counsel
to the President
The Honorable Charles H. Percy
United States Senate
Washington, D. C. 20510
KAL:dim
bec: Phil Buchen
FORD is LIBRARY 070870